Holding Social Media Liable for Terrorism: An Obvious Solution or a Poisoned Chalice?

*Meriam Mossad

I. Introduction

The United States Supreme Court heard oral arguments in Twitter, Inc. v. Taamneh on February 22, 2023.[1] The Court’s ruling could result in liability for internet platforms aiding and abetting terrorism.[2] While civil liability seems sensible to encourage aggressive actions to prevent the use of internet platforms promoting terrorism, this solution would stifle constitutional speech, as platforms would have incentive to remove speech advocating for rights we do not currently have.[3] A ruling in favor of the plaintiff would institute a heckler’s veto and allow the government to censor the internet indirectly.[4]

Nohemi Gonzalez (Gonzalez), a U.S. citizen, was killed in a terrorist attack in Paris, France, in 2015.[5] Gonzalez’s father filed an action against Google, Twitter, and Facebook. The plaintiff claims that all three platforms were liable for aiding and abetting international terrorism by failing to take meaningful action to remove the terrorists’ content. The plaintiff avers that the platforms thus hosted the terrorists’ content, even though they did not play an active role in the performance of international terrorism that actually injured Gonzalez.[6]

II. Collateral Censorship and Heckler’s Veto

First Amendment scholar, Professor Michael Meyerson, has underscored that companies who censor the speech of their customers are not engaging in self-censorship because the companies are not censoring their own speech.[7] Rather, Professor Myerson coined this phenomenon as “collateral censorship.”[8] Collateral censorship occurs when party A controls the speech of party B, and the government holds party A liable for party B’s speech, and in response, party A censors party B’s speech.[9] The risk of collateral censorship from the heckler’s veto is dangerous because intermediaries must often respond to complaints by deleting speech or eliminating a forum, as it would be unduly burdensome to investigate the merits of every complaint.[10] 

Some governments directly censor the internet by blocking certain websites or by flooding online platforms with pro-government content to drown out dissenting opinions.[11] The United States may be on the verge of censoring the internet, not through direct government censorship, but through collateral censorship.[12] Twitter, Inc. v. Taamneh may change the landscape of the internet, as this holding would not be limited to content related to terrorism—it would apply to all crimes.[13] As such, platforms would take down content regarding, for example, abortions and marijuana because in certain states marijuana use and abortion health care are crimes.[14]

A. General Speech

Platforms would likely foreclose discussions of controversial subject matter, including advocacy for rights and opportunities currently forbidden by law.[15] This would silence marginalized communities that use the internet as a powerful megaphone to effect lasting change, from the Black Lives Matter movement to the #MeToo campaign to the fight for LGBTQ+ rights.[16] This is the likely outcome as platforms could not use human review of all content due to the sheer volume of online content. Thus, they will err on the side of caution and remove most content.[17] However, automated tools cannot make complex assessments of the illegality of expression, which means that reliance on them will result in an arbitrary denial of lawful speech. Even if human review becomes possible, the platforms will remove speech they believe is legal due to the fear that a judge might disagree with their determination.[18]

B. Speech Regarding Terrorism

Even if the holding is narrowed to apply only to content “aiding and abetting” terrorism, platforms would still censor legal speech due to automated tools’ inability to comprehend the tonal and contextual elements of speech or to identify when speech is satire or published for reporting purposes.[19] Human rights and international legal observers reported that over-surveillance has primarily resulted in the removal of two categories of online speech: (1) the dissemination of news about terrorism and (2) speech in languages other than English.[20] While some platforms may use automated tools to remove all content about terrorism, “problematic content producers will overrun any undefended service, flooding it with material that other users don’t want.”[21]

III. Federalism Issue

Multiple states have together filed an amicus brief in support of the petitioner, arguing that the immunity Section 230 of Title 47 of the United States Code provides internet platforms displaces state law, although Congress did not explicitly write that.[22] To displace traditional spheres of state authority, Congress must “make its intention to do so ‘unmistakably clear in the language of [a] statute.’”[23] The language of Section 230 is clear, stating, “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”[24] The language embodies Congress’ obvious intention to preempt state law.[25] Without Section 230 state law preemption, platforms would have to not only remove speech regarding a right that is illegal in State A but also speech regarding a right that is legal in State B to ensure that it does not reach readers in State A.[26] 

Furthermore, preemption of state law has not displaced the state’s interests in protecting their citizens, as many states have enacted Anti-SLAPP laws acknowledging the chilling effect of frivolous lawsuits on constitutional speech.[27] There is increasing interest in passing a federal anti-SLAPP law.[28] While a federal anti-SLAPP law would provide social media platforms and users a shield from liability for their constitutional speech, the law would not dismiss these frivolous cases at the outset, while Section 230 does.[29]

IV. Conclusion

Some are characterizing a ruling in favor of the plaintiffs as just another area of law where plaintiffs would be able to sue the largest companies with the deepest pockets instead of the actual wrongdoers.[30] However, such a ruling would change the nature of the internet as we know it, silence constitutional speech, and make the United States another country where the internet is censored.[31]

*Meriam Mossad is an Associate Comments Editor for Law Review and a third-year student at the University of Baltimore School of Law. She currently serves as a student attorney for the Innocence Project Clinic. In 2022, she was a Law Clerk at Silverman Thompson Slutkin and White. After receiving her J.D., Meriam plans to clerk for Judge Stacy McCormack at the Anne Arundel County Circuit Court.

[1] Twitter, Inc. v. Taamneh, 214 L. Ed. 2d 12, 143 S. Ct. 81 (2022).

[2] Reply Brief for Petitioner, Taamneh v. Twitter, Inc., No. 21-1496, 2022 WL 17384573. at *26 (Nov. 29, 2022).

[3] See infra Section II.

[4] Brief of Chamber of Progress et al. as Amici Curiae in Support of Respondent, Gonzalez v. Google LLC, 2023 WL 375037, at *21 (2023).

[5] Twitter, Inc. v. Taamneh, 21-1496, 214 L. Ed. 2d 12, 143 S. Ct. 81 (2022).

[6] Id.

[7] Michael I. Meyerson, Authors, Editors, and Uncommon Carriers: Identifying the “Speaker” Within the New Media, 71 Notre Dame L. Rev. 79, 117 (1995).

[8] Id. (coining the term).

[9] Jack M. Balkin, Free Speech and Hostile Environments, 99 Colum. L. Rev. 2295, 2298 (1999).

[10] Reno v. American Civil Liberties Union, 521 U.S. 844, 880 (1997).

[11] See Ryan Gallagher, Sandvine Pulls Back From Russia as US, EU Tighten Control on Technology It Sells, Bloomberg (June 3, 2022), https://www.bloomberg.com/news/articles/2022-06-03/sandvine-pulls-back-from-russia-as-us-eu-tighten-control-on-technology-it-sells?leadSource=uverify%20wall (explaining how the Egyptian government utilizes monitoring tools sold by Sandvine to censor the internet); see also Joyce Lau, Who Are the Chinese Trolls of the ‘50 Cent Army’? Vox (Oct. 7, 2016, 2:50 AM), https://www.voanews.com/a/who-is-that-chinese-troll/3540663.html.

[12] Section 230 as First Amendment Rule, 131 Harv. L. Rev. 2027, 2046–47 (2018).

[13] See, e.g., Ashley Carman, Deciphering Spotify’s Ad Policy on Abortion Pills, Bloomberg News (Nov. 17, 2022, 2:30 PM), https://www.bloomberg.com/news/newsletters/2022-11-17/tracking-spotify-s-ad-policy-on-abortion-pills (describing how Spotify declined to air a healthcare non-profit’s informational advertisement involving abortion access in light of state laws outlawing abortion).

[14]  See, e.g., Maggie Q. Thompson, The “Aid and Abet” Abortion Era Begins, Austin Chronicle (Dec. 16, 2022), https://www.austinchronicle.com/news/2022-12-16/the-aid-and-abet-abortion-era-begins/ (explaining how threats to enforce Tex. Health & Safety Code § 171.208 has forced speakers to “tiptoe around even providing information on abortion access, lest they be prosecuted for ‘aiding and abetting’ a procedure”).

[15] Brief of Chamber of Progress et al. as Amici Curiae in Support of Respondent, Gonzalez v. Google LLC, 2023 WL 375037, at *21 (citing Letter from Chamber of Progress to Merrick B. Garland, U.S. Att’y Gen. at 2 (Nov. 21, 2022), https://progresschamber.org/wp-content/uploads/2022/11/Letter-to-AG-Garland-re-Gonzalez-v-Google-11-21-22.pdf).

[16] See generally id.

[17] Brief of Amici Curiae Article 19: Global Campaign for Free Expression and the International Justice Clinic at the University of California, Irvine School of Law in Support of Respondent, Gonzalez v. Google LLC, 2023 WL 1109131, at *3 (2023).

[18] Daphne Keller, Empirical Evidence of Over-Removal by Internet Companies Under Intermediary Liability Laws: An Updated List, Ctr. Internet & Soc’y (Feb. 8, 2021), https://cyberlaw.stanford.edu/blog/2021/02/empirical-evidence-over-removal-internet-companies-under-intermediary-liability-laws; Article 19, Watching the Watchmen Content Moderation, Governance, and Freedom of Expression, 29–30 (2021); see, e.g., Paige Leskin, A Year After Tumblr’s Porn Ban, Some Users Are Still Struggling to Rebuild Their Communities and Sense of Belonging, Bus. Insider (Dec. 20, 2019), https://www.businessinsider.com/tumblr-porn-ban-nsfw-flagged-reactions-fandom-art-erotica-communities-2019-8.

[19] Brief of Amici Curiae Article 19: Global Campaign for Free Expression and the International Justice Clinic at the University of California, Irvine School of Law in Support of Respondent, Gonzalez v. Google LLC, 2023 WL 1109131, at *3 (2023).

[20] Id.

[21] Eric Goldman & Jess Miers, Online Account Terminations/Content Removals and the Benefits of Internet Services Enforcing Their House Rules, 1 J. Free Speech L. 191, 209 (2021).

[22] Brief for the States of Tennessee and Alabama et al. as Amici Curiae in Support of Petitioners, Gonzalez v. Google LLC, 2022 WL 17640647 at *6 (2022).

[23] Gregory v. Ashcroft, 501 U.S. 452, 460 (quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65 (1989)).

[24] 47 U.S.C. § 230(e)(3).

[25] Id.

[26] Brief Amicus Curiae of M. Chris Riley and Floor64, Inc. d/b/a the Copia Institute el al. in Support of Respondent, Gonzalez v. Google LLC, 2023 WL 375041at *25 (Jan 19, 2023).

[27] Austin Vining & Sarah Matthews, Overview of Anti-SLAPP Laws,Reporters Committee (last visited Apr. 12, 2023) https://www.rcfp.org/introduction-anti-slapp-guide/ (“As of April 2022, 32 states and the District of Columbia have anti-SLAPP laws.”).

[28] Press Release, Chairman Raskin Introduces Legislation Establishing Federal Anti-SLAPP Statute to Protect First Amendment Rights (Sept. 15, 2022).

[29] Id.

[30] Taamneh Case Gave Us A Glimpse Of The Horror Websites Would Face In A Post-Section 230 World, Above The Law (Mar. 3, 2023) https://abovethelaw.com/2023/03/taamneh-case-gave-us-a-glimpse-of-the-horror-websites-would-face-in-a-post-section-230-world/

[31] See supra Section II.

Criminalization of Pregnancy

*Cherie Correlli

I. Introduction

All over the United States, states are charging pregnant women[1] with crimes under fetal protection laws and recognizing the fetus as a legal victim at a rapidly accelerating rate.[2] Criminalization of pregnancy includes penalizing individuals for actions during their own pregnancies, enforcing laws that punish actions during pregnancy that would not otherwise be criminal or punishable, and discriminating against pregnant people in the application of laws.[3] While these actions against pregnant people generally claim to protect fetal life, they have been found instead to increase the risk of harm to fetuses, primarily by disincentivizing people from seeking prenatal care or treatment for addiction.[4] Additionally, these laws have a discriminatory and harmful impact on a pregnant person’s mental health, physical health, and autonomy.[5]

II. Forms of Criminalization of Pregnancy

A. Criminal Statutes

Some states have enacted or attempted to enact statutes to criminalize fetal endangerment.[6] In 2014, Tennessee enacted a law that made pregnant women guilty of assault for illegal drug use during pregnancy if the child was born addicted to or harmed by the drug.[7] Although the statute lapsed under a sunset provision in 2016, legislators have since attempted to reintroduce similar statutes.[8] Thus far, most attempts to specifically criminalize the actions of pregnant people have been unsuccessful, but the initiatives are widespread and continuous.[9] In September 2022, Wyoming lawmakers narrowly rejected another attempt at introducing legislation criminalizing drug use during pregnancy.[10]

B. [Mis]interpretation of Existing Criminal Laws

While laws specifically criminalizing fetal endangerment by pregnant people are rare, it is common for states to interpret existing criminal laws to apply to the behavior of pregnant people.[11] States have charged women with homicide, reckless endangerment, child abuse, child neglect, and unlawful application of a controlled substance to a minor based on their behavior during pregnancy.[12] For example, Alabama has consistently and aggressively applied its 2016 chemical endangerment law—which was passed to target child exposure to home methamphetamine labs—to pregnant women for drug use while pregnant.[13] In Oklahoma, the inclusion of “unborn child” in the definition of human in homicide law paves the way to charge pregnant people for the death of their fetus.[14] One Oklahoman who suffered a loss in the second trimester of her pregnancy was sentenced to four years in prison for manslaughter, despite the State’s medical expert testifying that the cause of death was unknown and that genetic anomaly and placenta abruption may have been contributing factors.[15]

Even behavior that is not normally criminal can become criminal simply because a woman is pregnant.[16] Women who are otherwise able to consume alcohol legally may be prosecuted for this while pregnant.[17] Refusing medical intervention or treatment, a behavior that is ordinarily not criminal and, in fact, is a constitutionally protected right, may be prosecuted if it is seen to have caused a risk of harm to the fetus—whether or not actual harm occurs.[18] Failure to wear a seatbelt, a minor infraction under most circumstances, can carry harsher penalties for pregnant people because of the perceived risk to the fetus.[19] In one case, a woman shot in the stomach at five months pregnant was indicted on a charge of manslaughter when a grand jury determined that she knowingly initiated the fight that led to the shooting while pregnant.[20]

C. Punitive Civil Fetal Protection Action

Punishing women through the civil legal system is the most common approach to fetal endangerment.[21] Eighteen states are terminating parental rights based on prenatal drug use alone.[22] Minnesota, South Dakota, and Wisconsin have laws that allow women who use drugs during pregnancy to be involuntarily committed to a treatment program for either the length of the program or the length of their pregnancy.[23] Wisconsin’s Unborn Child Protection Act authorizes the state to involuntarily commit pregnant people based only on a suspicionthat the person has or may consume alcohol or a controlled substance during their pregnancy.[24] Since the passage of this Act, approximately 460 women each year have been jailed, forced into medical treatment, or put on house arrest because of the suspicion that they are pregnant and have consumed or may consume drugs or alcohol.[25] Suspicion of drug use that results in an investigation by state authorities can be just as invasive and traumatizing to pregnant people as involuntary commitment or having parental rights terminated.[26] At least one hospital in Maryland uses a threshold of prenatal drug testing that is so low that a woman was reported to the state and subjected to an investigation for eating a poppy seed bagel for breakfast before her labor.[27]

III. Recognition of the Fetus as a Person is Likely to Increase the Prosecution of Women for Endangerment or Harm to Their Fetus

A 2017 review of published judicial decisions in cases of substance abuse during pregnancy found that, in most jurisdictions, women charged with or convicted of crimes against their child or fetus usually won on appeal.[28] In these appellate cases, the outcome hinged on whether the judiciary treated the fetus as a child.[29] The Alabama and South Carolina Supreme Courts determined that the plain meaning of the word “child” included a fetus or “unborn child” and upheld such convictions.[30] In other jurisdictions, where the courts determined that a fetus was not a child in the eyes of the law, appeals were successful.[31]

In recent years, efforts to recognize fetal personhood have increased and have gained even more momentum since the recent Supreme Court decision in Dobbs v. Jackson Women’s Health Organization.[32] Several states have enforced near-total abortion bans since the ruling.[33] Georgia has enacted a law that declares a fetus a person beginning at six weeks gestation, thereby qualifying for tax credits, child support, and inclusion in population counts.[34] In October 2022, the Supreme Court declined to decide whether fetuses are entitled to constitutional rights, leaving the question open for battles to wage in the states.[35] If fetal personhood measures become more prevalent and successful, so too will the criminalization of pregnancy.

IV. Conclusion.

Since 1973, Pregnancy Justice has documented more than 1,700 instances in which women have been arrested, prosecuted, convicted, detained, or forced to undergo medical interventions because of either their pregnancy status or outcome.[36] Roughly three times as many instances of pregnancy criminalization were documented between 2006 and 2020 as between 1973 and 2005.[37] The deprivations of liberty and harms to women and their fetuses will almost certainly continue to increase until these injustices are countered through legal and social protections preventing the penalization of pregnancy. 

*Cherie Correlli is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review, a Distinguished Scholar in the Royal Graham Shannonhouse III Honor Society, and Research Assistant for Professor Lande. She worked as a birth doula in the Baltimore area for over a decade before law school. Cherie hopes to use her experience in birth work and legal skills to work on reproductive justice issues in the future.

[1] This article uses a mixture of gendered language that reflects how gender frames pregnancy discrimination systemically and gender-neutral language in recognition of the inclusion of pregnancy-capable people who do not identify as women. See Inclusive and Gender-Neutral Language, Nat’l Insts. of Health (Oct. 20, 2022), https://www.nih.gov/nih-style-guide/inclusive-gender-neutral-language (discussing acceptability of using both gender-specific and gender-neutral language in relation to pregnancy).

[2] Pregnancy Justice, Confronting Pregnancy Criminalization: A Practical Guide for Health Providers, Lawyers, Medical Examiners, Child Welfare Workers, and Policymakers 5, 9 (2022), https://www.pregnancyjusticeus.org/wp-content/uploads/2022/12/202211-PJ-Toolkit-Update-2.pdf

[3] Opposition to Criminalization of Individuals During Pregnancy and the Postpartum Period, Am. Coll. Obstetrics & Gynecology(2020), https://www.acog.org/clinical-information/policy-and-position-statements/statements-of-policy/2020/opposition-criminalization-of-individuals-pregnancy-and-postpartum-period.

[4] Meghan Boone & Benjamin J. McMichael, State-Created Fetal Harm, 109 Geo. L.J. 475, 487 (2021).

[5] Am. Coll. Obstetrics & Gynecology, supra note 3.

[6] Boone & McMichael, supra note 4, at 480.

[7] Id.

[8] Id.

[9] Id. at 480–81 (“In the first two months of 2017, seventeen state legislatures introduced criminal-fetal endangerment measures.  The Missouri legislature even considered the addition of an entirely new crime—‘abuse of an unborn child’—that would criminalize the ingestion of a narcotic drug or controlled substance while a woman knows or reasonably should have known that she is pregnant, regardless of whether the child is born addicted or otherwise harmed.”).

[10] Katie Roenigk, Lawmakers Narrowly Reject Criminal Penalties for Drug Use While Pregnant; Experts Prefer Plans of Safe Care, County10 (Sept. 27, 2022), https://county10.com/lawmakers-narrowly-reject-criminal-penalties-for-drug-use-while-pregnant-experts-prefer-plans-of-safe-care.

[11] Boone & McMichael, supra note 4, at 481.

[12] Id.

[13] Id.

[14] 21 Okla. Stat. § 21-691 (2020).

[15] Pregnancy Justice, supra note 2, at 11.

[16] Boone & McMichael, supra note 4, at 482.

[17] Id.

[18] Id.

[19] Id.

[20] Farah Stockman, Alabamians Defend Arrest of Woman Whose Fetus Died in Shooting, N.Y. Times (June 30, 2019), https://www.nytimes.com/2019/06/30/us/alabama-woman-marshae-jones.html.

[21] Boone & McMichael, supra note 4, at 484.

[22] Id.

[23] Id. at 485.

[24]  Pregnancy Justice, supra note 2, at 12.

[25] Id.

[26] Id. at 13.

[27] Antonia Noori Farzan, Yes, You Can Fail a Drug Test by Eating a Poppy Seed Bagel, as a Maryland Mother Learned, Wash. Post (Aug. 8, 2018), https://www.washingtonpost.com/news/morning-mix/wp/2018/08/08/yes-you-can-fail-a-drug-test-by-eating-a-poppy-seed-bagel-as-a-maryland-mother-learned. See also Theo Hayes, Poppy Seed Bagel Behind Woman’s Ordeal at Towson Hospital, WBALTV (Aug. 8, 2018), https://www.wbaltv.com/article/poppy-seed-bagel-behind-womans-ordeal-at-towson-hospital/22653211.

[28] Cara Angelotta & Paul S. Appelbaum, Criminal Charges for Child Harm from Substance Use in Pregnancy,45 J. Am. Acad. Psychiatry L. 193, 200 (2017).

[29] Id.

[30] Id.

[31] Id.

[32] Kate Zernicke, Is a Fetus a Person? An Anti-Abortion Strategy Says Yes, N.Y. Times (Aug. 21, 2022), https://www.nytimes.com/2022/08/21/us/abortion-anti-fetus-person.html.

[33] Id.

[34] Id.

[35] See Nate Raymond, U.S. Supreme Court Rebuffs Fetal Personhood Appeal, Reuters (Oct. 12, 2022), https://www.reuters.com/legal/us-supreme-court-rebuffs-fetal-personhood-appeal-2022-10-11.

[36] Pregnancy Justice, supra note 2, at 5.

[37] Id.

Airbnb’s Extenuating Circumstances Policy: Travelers Left High and Dry After Hurricane Ian Dampens Plans

*Devyn King

I. Introduction

Last year, Airbnb published users’ travel trends for Summer 2022.[1] Perhaps unsurprisingly, domestic travelers sought mostly coastal stays.[2] Florida was the application’s top destination for summer travel.[3] However, in late September 2022, Hurricane Ian made landfall in Florida.[4] The storm was a category four hurricane and caused as much as a foot of rain, flooding some areas of the state.[5] The flooding led to widespread power outages, blocked roadways, and placed some cities under evacuation orders.[6] The havoc Hurricane Ian caused made it impossible for travelers with Florida vacation plans to follow through with their reservations.[7] After canceling their Airbnb reservations due to the hurricane, many travelers were surprised to learn that Airbnb’s Extenuating Circumstances policy did not allow them to cancel without penalty but instead placed them at the mercy of their individual hosts for a refund.[8] Some hosts were understanding enough to issue full refunds, but others were not.[9]

II. Take a Rain Check: Force Majeure Clauses

A force majeure, also referred to as an “act of God,” is “an event or effect that can be neither anticipated nor controlled; especially an unexpected event that prevents someone from doing or completing something that a person had agreed or officially planned to do.”[10] The occurrence of a force majeure event will excuse performance under a contract.[11] This is premised on the idea that the law should not penalize someone for a failure to perform due to an event beyond their control, or one that they could not reasonably foresee unless they expressly agreed to assume liability in such event.[12]

When drafting a contract, parties may negotiate a force majeure clause so that each party knows which events or extenuating circumstances will prevent performance.[13] Courts typically give effect to the specific language the parties define in a contract.[14] This includes the circumstances in which the force majeure clause applies and the procedures to follow in the event one occurs.[15] Since Hurricane Katrina struck New Orleans in 2005,[16] force majeure clauses have become more critical to account for potential natural disasters.[17] However, treating hurricanes as a force majeure has caused disputes regarding foreseeability. While it may be reasonably foreseeable to experience a hurricane in an area prone to tropical storms, the possibility of catastrophic storms causing extreme flooding is statistically remote.[18]

III. When It Rains, It Pours: Airbnb’s Extenuating Circumstances Policy

Booking a short-term rental through Airbnb includes agreeing to its Extenuating Circumstances Policy, which outlines how the company handles cancellations when force majeure events “make it impracticable or illegal to complete [a] reservation.”[19] Under the policy, travelers can cancel their reservation and receive a refund or travel credit when an unforeseen event impacts their trips.[20] The policy lists scenarios that qualify as an “event”; including changes to government travel requirements, such as visa or passport issues, government-declared emergencies or epidemics, government-imposed travel restrictions that prohibit travel to or from particular locations, military actions, and “natural disasters, acts of God, large-scale outages of essential utilities, volcanic eruptions, tsunamis, and other severe and abnormal weather events.”[21]

However, the policy expressly excludes “weather or natural conditions that are common enough to be foreseeable in that location—for example, hurricanes occurring during hurricane season in Florida.”[22] The Airbnb website lists precisely which weather events—and in which months they occur—are excluded from the Extenuating Circumstances Policy.[23] From June through November, hurricanes occurring along the Gulf of Mexico, the Caribbean Sea, and practically the whole East Coast do not qualify as force majeures.[24] In such a case, a host cancellation is the only avenue for a refund.[25]

IV. Today’s Forecast: Cloudy with a Low Chance of Success

Airbnb’s Extenuating Circumstances policy allows cancellation without penalty when it is “impracticable or illegal to complete [a] reservation.”[26] Completing a reservation certainly became impracticable for travelers who faced flooded roadways, toppled infrastructure, and widespread power outages.[27] Additionally, many affected travelers canceled their reservations because their destinations had mandatory evacuation orders in place.[28] The Fifth District Court of Appeal of Florida previously stated, “a governor’s executive order is not a law, but it has the force and effect of law,”[29] but did not directly resolve the issue of whether ignoring a mandatory evacuation order would constitute a violation of a law.[30] Until the courts or the legislature clarify this issue, it is uncertain whether affected Airbnb guests could successfully challenge the Extenuating Circumstances Policy by arguing it would be illegal to complete their reservations under an evacuation order.

Nevertheless, Airbnb’s Extenuating Circumstances Policy expressly excludes hurricanes in September and October for reservations in Florida.[31] By agreeing to its terms, travelers assume the risk of a cancellation due to any non-qualifying event under the policy.[32] Because courts typically give effect to the express language agreed to by the parties, any challenges to the Extenuating Circumstances Policy by affected travelers will likely fail.[33]

V. Conclusion

Through no fault of their own, but merely due to an inauspicious force majeure clause and settled contract law principles, Airbnb guests are left to their hosts’ kindness to provide refunds after canceling in the wake of Hurricane Ian.[34] To avoid potential liability for incomplete reservations due to future unforeseen circumstances, guests should check what, if any, events are expressly excluded from the rental platform’s force majeure policy before booking a short-term rental.

*Devyn King is a staff editor for Law Review and a second-year student at the University of Baltimore School of Law. She is currently the Vice President of the Students Supporting the Women’s Law Center chapter at UB and is a teaching assistant for Intro​duction to Lawyering Skills/Civil Procedure I. Devyn is also a Distinguished Scholar of the Royal Graham Shannonhouse III Honor Society and a proud graduate of the University of Pittsburgh. In 2022, Devyn worked as a summer associate for Gallagher Evelius and Jones LLP. After receiving her J.D., Devyn hopes to work as a transactional attorney in Baltimore City.

[1] Airbnb 2022 Summer Release Highlights, Airbnb News (May 11, 2022), https://news.airbnb.com/airbnb-2022-summer-release-highlights/.

[2] Id.

[3] See id.

[4] See Michael Tobin, Airbnb Guests Are at the Mercy of Hosts for Hurricane Refunds, Bloomberg (Sept. 29, 2022), https://www.bloomberg.com/news/articles/2022-09-29/airbnb-guests-must-rely-on-hosts-for-hurricane-ian-refunds?leadSource=uverify%20wall.

[5] See id.

[6] See id.

[7] See id.

[8] See Hannah Towey, Airbnb’s Refund Policy Specifically Excludes Hurricanes in Florida Because They Are ‘Common Enough to be Foreseeable,’ Business Insider (Oct 5, 2022) https://www.businessinsider.com/airbnb-refund-policy-booking-host-cancellations-hurricane-ian-florida-aircover-2022-10.

[9] See id.

[10] 30 Richard A. Lord, Williston on Contracts § 77:31 (4th ed. 2022) (citing Black’s Law Dictionary (11th ed. 2019)).

[11] Id.

[12] See Farnsworth v. Sewerage & Water Bd. of New Orleans, 139 So. 638, 641 (La. 1932).

[13] See Jennifer Sniffen, In the Wake of the Storm: Nonperformance of Contract Obligations Resulting from A Natural Disaster, 31 Nova L. Rev. 551, 553 (2007).

[14] See 30 Lord, supra note 10.

[15] See Force Majeure Issues Relating to Katrina, Jones Walker (Sept. 21, 2005), https://www.joneswalker.com/images/content/1/1/v2/1176/249.pdf. 

[16] Extremely Powerful Hurricane Katrina Leaves a Historic Mark on the Northern Gulf Coast, Nat’l Weather Serv. (Sept. 2022), https://www.weather.gov/mob/katrina.

[17] See Sniffen, supra note 13 at 553.

[18] Force Majeure Issues Relating to Katrina, supra note 15.

[19] Extenuating Circumstances Policy, Airbnb, https://www.airbnb.com/help/article/1320/extenuating-circumstances-policy (last visited Oct. 23, 2022).

[20] See id.

[21] Id.

[22] Id.

[23] See Weather Events, Natural Conditions, and Diseases That Are Excluded From Our Extenuating Circumstances Policy, Airbnb, https://www.airbnb.com/help/article/2930/weather-events-natural-conditions-and-diseases-that-are-excluded-from-our-extenuating-circumstances-policy (last visited Oct. 23, 2022) [hereinafter Weather Events].

[24] See id.

[25] See Tobin, supra note 4.

[26] Extenuating Circumstances Policy, supra note 19.

[27] See generally Patricia Mazzei et al., Hurricane Ian’s Staggering Scale of Wreckage Becomes Clearer in Florida, N. Y. Times (Sept. 29, 2022), https://www.nytimes.com/2022/09/29/us/hurricane-ian-florida-damage.html (explaining the damage resulting from Hurricane Ian throughout Florida).

[28] See Tobin, supra note 4.

[29] Gillyard v. Delta Health Grp., Inc., 757 So. 2d 601, 603 (Fla. Dist. Ct. App. 2000).

[30] See id.

[31] See Weather Events, supra note 23.

[32] See Extenuating Circumstances Policy, supra note 19.

[33] See 30 Lord, supra note 10.

[34] See Tobin, supra note 4.

When Pigs Won’t Fly: How the U.S. Pork Industry Could Change State Regulatory Powers in National Pork Producers Council v. Ross

*James Duffy

On October 11, 2022, the Supreme Court heard oral arguments in a case that could drastically change the future of state policymaking.[1] The case concerns a narrow issue involving a California animal welfare law.[2] In National Pork Producers Council v. Ross, the Court will decide the fate of an industry challenge to California’s Proposition 12.[3] The pork industry has challenged this law, which mandates specific welfare standards for all pork raised and sold in California, as a violation of the Dormant Commerce Clause (DCC).[4] While the Court’s ruling is pending, scholars and reporters contend that the impact of this decision could ripple far beyond animal welfare law, begetting significant consequences on states’ abilities to regulate everything from climate change to labor and reproductive rights.[5]

I. The Dispute

In November 2018, California voters passed the Prevention of Cruelty to Farm Animals Act, commonly known as Proposition 12, by an over sixty percent majority.[6] The law amended Section 25990 of California’s Health and Safety Code and prohibited businesses from selling pork in the state if the pig or its offspring was confined inhumanely.[7] Among various other animal welfare provisions, Proposition 12 targets the use of “gestation crates,” a common enclosure method of confining breeding pigs in “metal enclosures so small the pigs can’t turn around for virtually their entire lives.”[8]

A year after the law took effect, the National Pork Producers Council (the Council) filed a complaint against California state officials (defendants) in the District Court for the Southern District of California to challenge the law.[9] The Council sought a declaration that Proposition 12 violated the DCC because almost all domestic pork production (i.e., where the targeted confinement practices occur) takes place outside of California and, therefore, the law could drastically impact the national pork industry.[10] The district court granted the defendants’ motion to dismiss, holding that the Council did not sufficiently allege that Proposition 12 “impermissibly control[led] extraterritorial conduct” or “impose[d] a substantial burden on interstate commerce.”[11] The Council appealed to the Court of Appeals for the Ninth Circuit, which affirmed the lower court’s decision in favor of the defendants.[12]

II. The Ninth Circuit’s Decision

In a de novo review, the Ninth Circuit considered whether the district court abused its discretion in dismissing the complaint. The Court of Appeals reviewed the two central arguments the Council raised in their complaint: First, that Proposition 12 violated the DCC through “impermissible extraterritorial effect[s]” and second, that California’s “excessive burdens” on interstate commerce outweighed California’s local interests in the law under the balancing test established in Pike v. Bruce Church, Inc.[13] This balancing test, which the Supreme Court has not specified a methodology for, requires courts to compare the “in-state benefits and out-of-state burdens” of a law’s impacts on interstate commerce.[14]

First, the Ninth Circuit rejected the Council’s argument that Proposition 12 had impermissible extraterritorial effects.[15] Invoking the Supreme Court’s interpretation of the extraterritoriality principle, which narrowly prohibits state “price control or price affirmation statutes” or those that regulate commerce “wholly outside” of the state’s borders, the Ninth Circuit distinguished Proposition 12’s effects from those the Supreme Court formerly deemed “impermissible.”[16] The court emphasized that the extraterritoriality principle has been applied only to those laws that seek to “regulate transactions wholly outside” of the enacting state, which they determined Proposition 12 did not.[17] Similarly, the Ninth Circuit rejected the Council’s argument that California lacked “any legitimate local interests” in the law.[18] Rather, the court held that the Council failed to establish any “significant burden” on interstate commerce, holding that an increase in compliance costs for certain out-of-state market participants alone failed to outweigh local interests in consumer protection and animal welfare under Pike.[19]

Accordingly, the Ninth Circuit affirmed the district court’s dismissal of the complaint because the Council failed to sufficiently plead a violation of the DCC.[20] The Council appealed again, and the Supreme Court granted certiorari on March 28, 2022.[21]

III. Oral Argument Before the Supreme Court

During oral argument, the Council and the state defendants received vigorous questioning from all nine Justices.[22] Arguably the most compelling issue raised before the Court, and one absent from the Ninth Circuit’s opinion, revolved around the permissibility of state commerce regulations based on morality.[23] During oral argument, the Council urged that Proposition 12 represents California’s attempt to impose its moral views on animal welfare on the rest of the nation, subsequently increasing consumer costs without reasonable justification in science or public health.[24] In effect, the Council presented the Supreme Court with a new per se rule derived from Pike, essentially asking the Court to bar the consideration of a state’s “moral” interests against the law’s burdens on interstate commerce.[25] Alternatively, the defendants argued that adoption of such a rule would prevent states from maintaining “core feature[s] of state sovereign authority,” such as regulating intrastate commerce and passing legislation based on legitimate, public welfare interests.[26]

While it remains unclear exactly how the Supreme Court will rule in this case, both the liberal and conservative justices expressed apprehension about altering the Pike test.[27] Justice Kagan emphasized that “a lot of policy disputes can be incorporated into laws” like Proposition 12, suggesting that a decision for the Council could welcome challenges to a multitude of other state laws.[28] Justice Barrett also expressed concern about the effects of adopting this rule, asking the plaintiffs: “How many laws would fall?”[29] She also raised concerns about how courts would be able to effectively distill a state’s “moral interests” from legitimate interests in public health and safety.[30]  

IV. “How Many Laws Would Fall?”

The Supreme Court’s decision in National Pork Producers Council could change the way states regulate much more than farming practices.[31] The implications of a decision for either side are perplexing.[32] On the one hand, a decision favoring the Council and adopting this per se Pike rule could lead to courts invalidating many state laws with otherwise permissible extraterritorial impacts on the basis that local interests are too “moral.”[33] Some scholars argue that state policies on clean energy, minimum wages, and even reproductive healthcare could be challenged and deemed unconstitutional under this new rule if a reviewing court found the justification to be based too broadly on a state’s “moral interests.”[34]

On the other hand, entirely rejecting the Council’s challenge could weaken the applicability of the DCC and initiate a flood of new state laws based on “morality.”[35] Legal scholars point out that even the Biden administration “weighed in on behalf of the pork industry” in this case, joining reporters on both sides of the political spectrum who fear the state laws that could be passed on the basis of “morality” if this decision serves to rubberstamp Proposition 12.[36] “[W]eakening the [DCC], even a little” in this decision could open the door to states “passing facially ridiculous laws in a race to see who can be the first to ban products produced by organized labor,” in addition to a plethora of other discriminatory regulations that would not otherwise survive the Pike balancing test.[37]

V. Conclusion

No matter how the Court rules in National Pork Producers Council v. Ross, state regulation on issues much more salient than pork confinement practices could change as a result. In the legal landscape following West Virginia v. EPA,[38] a 2022 Supreme Court decision that California Governor Gavin Newsom described as a “kneecapping” of federal regulatory powers, the stakes for this decision aimed at state regulatory powers could not be higher.[39] The Court is expected to issue a decision in National Pork Producers Council this summer.[40]

*James Duffy is a second-year day student at the University of Baltimore, where he serves as a Staff Editor for the University of Baltimore Law Review, the Vice President of the University of Baltimore’s Environmental Law Society, and a Distinguished Scholar in the Royal Graham Shannonhouse III Honor Society. During his 1L summer, he served as a Law Clerk for the Maryland Office of the Attorney General for the Department of Natural Resources. He is currently a Law Clerk in the United States Environmental Protection Agency’s Office of Enforcement and Compliance Assurance. He looks forward to continuing this internship and his work as a Naturalist with Baltimore County’s Department of Recreation and Parks through his 2L summer.

Photo credit: Wikimedia Commons user kallerna (licensed under the Creative Commons Attribution-Share Alike 4.0 International license).

[1] National Pork Producers Council v. Ross, 6 F.4th 1021 (9th Cir. 2021), cert. granted, 142 S. Ct. 1413 (Mar. 28, 2022) (No. 21-468).

[2] National Pork Producers Council v. Ross, 6 F.4th 1021, 1025 (9th Cir. 2021).

[3] Id.

[4] Id.

[5] See Ian Millhiser, The Surprisingly High Stakes in a Supreme Court Case About Bacon, Vox (Oct. 9, 2022) https://www.vox.com/policy-and-politics/2022/10/9/23392575/supreme-court-national-pork-producers-ross-bacon-dormant-commerce-clause; Elie Mystal, How a Supreme Court Case About Pigs Could Further Undermine . . . Abortion Rights, Nation (October 14, 2022) https://www.thenation.com/article/society/supreme-court-pork-case-california/; Niina H. Farah, What a Supreme Court Case on Pigs Means for Renewable Energy, EnergyWire (Oct. 7, 2022) https://www.eenews.net/articles/what-a-supreme-court-case-on-pigs-means-for-renewable-energy/. 

[6] Proposition 12 sought “to prevent animal cruelty by phasing out extreme methods of farm animal confinement, which also threaten the health and safety of California consumers, and increase the risk of foodborne illness and associated negative fiscal impacts on the State of California.” Cal. Proposition 12, § 2 (2018). See also Robert Barnes, Supreme Court Weighs Far-Reaching Effects of California Pork Restrictions, Wash. Post (Oct. 11, 2022) https://www.washingtonpost.com/politics/2022/10/11/supreme-court-california-pork-law/.

[7] Cal. Health & Safety § 25990(b)(2) (West 2022).

[8] Kenny Torrella, The Fight Over Cage-Free Eggs and Bacon in California, Explained, Vox (Aug. 10, 2021), https://www.vox.com/future-perfect/22576044/prop-12-california-eggs-pork-bacon-veal-animal-welfare-law-gestation-crates-battery-cages.

[9] National Pork Producers Council v. Ross, 6 F.4th 1021, 1025 (9th Cir. 2021).

[10] Id. at 1025, 1028.

[11] Id. at 1026.

[12] Id.

[13] Id. at 1026, 1028, 1030 (discussing Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)).

[14] Id. at 1032.

[15] Id.

[16] Id. at 1026–28 (quoting Pharm. Rsch. & Mfrs. of Am. v. Walsh, 583 U.S. 644, 669 (2003)).

[17] Id. at 1031.

[18] Id. at 1025–26.

[19] The Council argued that compliance with Proposition 12 would result in a national “9.2 percent increase in production cost” of pork. Id. at 1033. 

[20] Id. at 1033–34.

[21] National Pork Producers Council v. Ross, 6 F.4th 1021 (9th Cir. 2021), cert. granted, 142 S. Ct. 1413 (Mar. 28, 2022) (No. 21-468).

[22] See Barnes, supra note 5.

[23] Transcript of Oral Argument at 20, National Pork Producers Council v. Ross, 142 S. Ct. 1413 (2022) (No. 21-468).

[24] Id. at 22–24.

[25] Id. at 31.

[26] Id. at 116–17.

[27] Id. at 30–31; 43–46.

[28] Id. at 95.

[29] Id. at 43.

[30] Id. at 43, 95–99.

[31] See Millhiser and Mystal, supra note 4.

[32] Id.

[33] Id.

[34] See supra note 4.

[35] See Mystal, supra note 4.

[36] Id.

[37] Id.

[38] West Virginia v. EPA, 142 S. Ct. 2587 (2022).

[39] Howard Goller, Reactions to U.S. Supreme Court Ruling on Carbon Emissions, Reuters (June 30, 2022, 2:06 PM) https://www.reuters.com/legal/government/reactions-us-supreme-court-ruling-carbon-emissions-2022-06-30/.

[40] Matt Regusci, Will California and the Supreme Court Cripple the Pork Industry?, Food Safety Tech (Jan. 8, 2023), https://foodsafetytech.com/column/will-california-and-the-supreme-court-cripple-the-pork-industry/.

Williams v. Kincaid: The Fourth Circuit’s Landmark Protection of Gender Dysphoria Under the ADA

*Erin Turvey

I. Introduction

On August 16, 2022, the United States Court of Appeals for the Fourth Circuit issued a landmark decision extending protection under the Americans with Disabilities Act (ADA) to people with gender dysphoria.[1] Plaintiff Kesha Williams (Williams), a transgender woman diagnosed with gender dysphoria, was incarcerated for six months in the Fairfax County Adult Detention Center.[2] Williams was initially assigned to housing on the women’s side of the prison but was moved to the men’s side (pursuant to the prison’s policy which based gender classification on genitalia) after disclosing to the prison nurse that she is transgender.[3] Williams requested that the nurse retrieve the hormone medication she had brought to prison—which she had been taking for fifteen years.[4] Instead, the nurse instructed her to fill out a medical release form.[5] After the initial delay in receiving her hormone medication, Williams allegedly experienced additional delays in receiving treatment, was consistently misgendered, and was harassed by other incarcerated people and sheriff’s deputies.[6]

Following her release in May 2019, Williams brought suit against the Fairfax County Sheriff and others, claiming violations of the ADA and the Constitution.[7] The defendants moved to dismiss, arguing that the ADA offered no basis for relief to Williams because “gender dysphoria is not a ‘disability’ under the ADA.”[8] The District Court for the Eastern District of Virginia agreed with this argument and dismissed the suit.[9] In an issue of first impression for federal appellate courts, the Court of Appeals for the Fourth Circuit reversed, holding that the exclusion under the ADA for “gender identity disorders not resulting from physical impairments” did not include gender dysphoria.[10] Thus, Williams’ ADA claim was not barred.[11]

II. Exclusions Under the ADA and Ms. Williams’ Argument

The ADA provides people with a disability protection from discrimination on account of that disability.[12] Disability is defined broadly under the ADA as “a physical or mental impairment that substantially limits one or more major life activities of such individual.”[13] However, there are a number of exclusions as to what constitutes a disability under the ADA, such as “homosexuality,” “bisexuality,”[14] and “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.”[15]

In her appeal, Williams challenged the District Court’s reliance on the “gender identity disorder[] not resulting from physical impairments” exclusion as a bar to her ADA claim.[16] Williams primarily argued that categorizing gender dysphoria as a “gender identity disorder[]” is inaccurate.[17] The Fourth Circuit agreed.[18]

III. Differentiating Gender Dysphoria From Gender Identity Disorders

The Fourth Circuit relied in large part on differentiating gender dysphoria from gender identity disorders to reach its conclusion that gender dysphoria is not excluded from protection under the ADA.[19] The ADA does not define gender identity disorders, nor is gender dysphoria even mentioned in the ADA.[20] Thus, the court looked to the statute’s meaning at the time of adoption.[21] The court determined that when the ADA was adopted in 1990, “‘gender identity disorders’ did not include gender dysphoria[.]”[22] Rather, gender dysphoria had not yet been recognized as a separate diagnosis.[23]

“[I]n 1990, the gender identity disorder diagnosis marked being transgender as a mental illness,” characterized by a “discordant gender identity.”[24] After significant advances in understanding, the most recent version of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), removed “gender identity disorder” and added “gender dysphoria” as a diagnosis.[25] In contrast to the focus on gender identity in the definition of the now-rejected “gender identity disorder” diagnosis, “the DSM-5 defines ‘gender dysphoria’ as the ‘clinically significant distress’ felt by some of those who experience ‘an incongruence between their gender identity and their assigned sex.’”[26]

The DSM-5’s shift in focus to “distress and other disabling symptoms”[27] that, if left untreated, could lead to “depression, substance use, self-mutilation, other self-harm and suicide,”[28] was enough for the court to hold that, “as a matter of statutory construction, gender dysphoria is not a gender identity disorder.”[29] Congress gave the courts the “express instruction that courts construe the ADA in favor of maximum protection for those with disabilities.”[30] The Fourth Circuit chose not to add to the list of exclusions that Congress made, finding instead that gender dysphoria did not fall within the statute’s exclusion for “gender identity disorders.”[31]

IV. Avoiding a Constitutional Question

In further support of its conclusion, the Fourth Circuit relied on the cannon that, if an interpretation of a statute exists which can avoid a constitutional question, that construction should be adopted.[32] Here, the constitutional question was under the Equal Protection Clause: a reading of the ADA that excluded protection of “both ‘gender identity disorders’ and gender dysphoria would discriminate against transgender people as a class.”[33] To avoid deciding whether the exclusions to ADA protection are an Equal Protection violation, the court elected to adopt the statutory construction that would notraise the constitutional question—gender dysphoria is not a “gender identity disorder[].”[34]

V. Conclusion

The Fourth Circuit’s holding has far-reaching implications, including allowing ADA violation claims for the refusal of gender-affirming care for people diagnosed with gender dysphoria in the carceral context.[35] Moreover, Maryland, Virginia, West Virginia, North Carolina, and South Carolina employers will now have to provide reasonable accommodations for employees with gender dysphoria, such as inclusive restroom access and leave for gender affirming medical treatment.[36] In a time when more than a dozen states have proposed so-called “Don’t Say Gay” bills,[37] it is imperative that more protections be extended to transgender people. While there is more to be done, the Fourth Circuit’s ruling is a promising step in the right direction.

*Erin Turvey is a second-year evening student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review, a teaching assistant for Introduction to Lawyering Skills/Civil Procedure I, a Law Scholar for Contracts I, a Research Assistant for Professor Tiefer, and a Distinguished Scholar of the Royal Graham Shannonhouse III Honor Society. After receiving her J.D., Erin hopes to work in public interest law.

[1] See Williams v. Kincaid, 45 F.4th 759 (4th Cir. 2022).

[2] Id. at 763.

[3] Id. at 764.

[4] Id.

[5] Id.

[6] Id. at 764–65.

[7] Id.

[8] Id. at 765.

[9] Williams v. Kincaid, No. 1:20-CV-1397, 2021 WL 2324162, at *2 (E.D. Va. June 7, 2021), rev’d, 45 F.4th 759 (4th Cir. 2022).

[10] Williams, 45 F.4th at 766.  

[11] Id.

[12] Americans with Disabilities Act of 1990, 42 U.S.C. § 12132.

[13] 42 U.S.C. § 12102(1)(A).

[14] Id. § 12211(a).

[15] Id. § 12211(b)(1).

[16] Williams, 45 F.4th at 766.

[17] Id.

[18] Id. at 779–80.

[19] Id. at 767.

[20] Id.

[21] Id. at 766.

[22] Id. at 767.

[23] Id.

[24] Id. (quoting Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 611 (4th Cir. 2020)).

[25] Williams, 45 F.4th at 767.

[26] Id. (quoting American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 452–53 (American Psychiatric Publishing, 5th ed. 2013)).

[27] Williams, 45 F.4th at 768.

[28] Id. (quoting Grimm, 972 F.3d at 595).

[29] Williams, 45 F.4th at 769.

[30] Id. at 769–70.

[31] Id. at 769.

[32] Id. at 773–74.

[33] Id. at 772.

[34] Id. at 773–74.

[35] See, e.g., Zayre-Brown v. N. Carolina Dep’t off Pub. Safety, No. 3:22-CV-101-MOC-DCK, 2022 WL 4456268 at *1, *5 (W.D.N.C. Sept. 23, 2022).

[36] Ryan M. Bates, Fourth Circuit Holds That Gender Dysphoria is Protected Under the ADA, Nat’l L. Rev. (Sept. 14, 2022), https://www.natlawreview.com/article/fourth-circuit-holds-gender-dysphoria-protected-under-ada.

[37] “Don’t Say Gay” bills are, in general, geared towards prohibiting schools from incorporating discussion of topics such as gender identity and sexual orientation into curriculums. Dustin Jones & Jonathan Franklin, Not Just Florida. More Than a Dozen States Propose So-Called ‘Don’t Say Gay’ Bills, NPR (Apr. 10, 2022), https://www.npr.org/2022/04/10/1091543359/15-states-dont-say-gay-anti-transgender-bills. Such bills are largely seen by critics to be motivated by transphobia and homophobia. Id.